C.M. Lodha, J.
1. The petitioners who are brothers have made two separate applications under Article 226 of the Constitution for issue of writ quashing orders made against them under Section 3(2)(c) of the Foreigners Act, 1946 (which will hereinafter be referred to as 'the Act'). The orders are identical and read as follows:
'You............ a Pak. national resident of Chak No. 179 P. S. Fortabas District Bhawalpur, Pak. at present residing in India at Phoolsar PS Anoopgarh c/o..................... entered India on 10-11-1971without any valid travel documents for which you are facing trial in the Court of Judicial Magistrate 1st Class Raisinghnagar in case FIR No. 17 dated 11-10-1971 under Section 3/6 IPPA, 3/14 F. Act PS Gharsana.
I, Shyam Pratap Singh Rathore, District Superintendent of Police, Sri Ganganagar hereby order you under Section 3(2)(c) of Foreigners Act, 1946 to leave India before 14-8-1974 positively.
You are further directed to secure requisite travel documents through the Swiss Mission in India and make your own travel arrangements to proceed to Pakistan.
Any failure on your part to comply with this order shall make you liable for penal prosecution under the provisions of Foreigners Act, 1946.'
Sd. S. P. Singh Rathore, IPS
Distt. Supdt. of Police,
The petitioners did not comply with the orders but instead moved this Court on 8th August, 1974 for issue of a writ to quash them.
2. It was contended on behalf of the petitioners that they are not foreigners. There is no doubt that if the petitioners are foreigners, then the impugned orders cannot foe challenged. The question, therefore, is whether the petitioners are foreigners.
3. Section 2(a) of the Act defines a 'Foreigner' as 'a person who is not a citizen of India.' Section 9 of the Act, so far as it is material, is in these terms:--
'9.--If in any case not falling under Section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner ...............the onus of proving that such person is not a foreigner ............ notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) lies upon such person.'
4. It is quite clear that Section 8 has no application to this case for that section does not apply when the question is whether a person is a foreigner or an Indian citizen, which is the question before me and not what the nationality of a person who is not an Indian citizen is. Section 8(1) of the Act deals with the case of a foreigner who is recognised as its national by more than one foreign country or that it is uncertain what his nationality is. Thus there is no doubt that Section 9 applies to the present case and the onus of showing that the petitioners are not foreigners lies upon them.
5. There is no denying the fact that the question whether the petitioners are foreigners is a question of fact. The State has asserted that they are foreigners. Thus there is a dispute on a question of fact which would require a detailed examination of evidence. A proceeding under Article 226 of the Constitution would, in my opinion, not be appropriate for a decision of this question, which can best be decided by a suit. As I propose to leave the petitioners free to file such a suit, if they are so advised, I do not think it proper to deal with the evidence in the shape of affidavits put on the record on the question of the petitioners' nationality so as not to prejudice any proceedings that may be brought in future.
6. I think, for the reasons mentioned above, the petitioners are not entitled to get any relief bv wav of petition under Article 226 of the Constitution. However, in order to allay the fears of the petitioners that the authorities concerned may take immediate steps to enforce the impugned orders, the learned Deputy Government Advocate has very fairly stated that the Government will not take immediate steps to enforce the impugned orders so that in the meantime the petitioners may, if they so choose, file a suit or take any other proceedings that they think fit for the decision of the question as to whether the petitioners are foreigners.
7. In the result, both the petitions are dismissed. However, there will be no order as to costs.